Lyles v. Turner, No. COA09-932 (N.C. App. 3/2/2010)

• Decision Date: 02 March 2010
• Docket Number: No. COA09-932.,COA09-932.
• Parties: GEORGE C. LYLES, JR. and wife, BARBARA P. LYLES, Plaintiffs-Appellees, v. CLAUDE TURNER and wife, PEGGY CATE TURNER, Defendants-Appellants.
• Court: North Carolina Court of Appeals

Page 1

Unpublished Opinion

GEORGE C. LYLES, JR. and wife, BARBARA P. LYLES, Plaintiffs-Appellees, v.CLAUDE TURNER and wife, PEGGY CATE TURNER, Defendants-Appellants.

No. COA09-932.

Court of Appeals of North Carolina.

Filed March 2, 2010.

This case not for publication

Polk County, No. 08-CVD-131.

Appeal by Defendants from order entered 29 April 2009 by Judge Athena F. Brooks in District Court, Polk County. Heard in the Court of Appeals 2 December 2009.

Law Offices of Travis S. Greene, PC, by Travis S. Greene, for Plaintiffs-Appellees.

Hamrick, Bowen, Mebane & Lloyd, LLP, by David A. Lloyd, for Defendants-Appellants.

McGEE, Judge.

George C. Lyles, Jr. and Barbara P. Lyles(Plaintiffs) filed a complaint on 5 May 2008 seeking to enforce certain restrictions contained in a deed to real property owned by Claude and Peggy Cate Turner(Defendants).In their complaint, Plaintiffs alleged claims for: (1) injunctive relief, seeking to enjoin Defendants from operating a bed and breakfast on Defendants' property; and (2) breach of contract, requesting damages not in excess of $10,000.00.Defendants filed an answer and counterclaim on 7 July 2008.Plaintiffs filed an amended complaint on 12 December 2008, adding a claim for declaratory judgment.Plaintiffs then moved for partial summary judgment on the issue of declaratory judgment on 18 March 2009.In an order entered 29 April 2009, the trial court granted Plaintiffs' motion for partial summary judgment as to their claim for declaratory judgment.Defendants appeal.

Defendants contend that the trial court committed reversible error in granting Plaintiffs' motion for partial summary judgment.Before we address Defendants' argument, we must first determine whether this appeal is properly before our Court.

Generally, no appeal lies from an interlocutory order.A.E.P. Industries, Inc. v. McClure,308 N.C. 393, 400, 302 S.E.2d 754, 759(1983).An order is interlocutory when "it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy."N.C. Dept. of Transp. v. Page,119 N.C. App. 730, 733, 460 S.E.2d 332, 334(1995)(citation omitted)."A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal."Liggett Group, Inc. v. Sunas,113 N.C. App. 19, 23, 437 S.E.2d 674, 677(1993)(citation omitted).

A party may appeal from an interlocutory order where that order "[a]ffects a substantial right, or . . . [i]n effect determines the action and prevents a judgment from which appeal might be taken[.]"N.C. Gen. Stat. § 7A-27(d)(2009).N.C.R. App. P. 28(b)(4) provides "[w]hen an appeal is interlocutory, the statement [of grounds for appellate review] must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right."

Defendants contend that Plaintiffs' other claims "are effectively determined by the [c]ourt's ruling on the issue of declaratory judgment . . . despite the fact that the motion was only for partial summary judgment."Defendants cite no authority and make no further argument in support of this contention.

The matter before us arose out of a dispute between the parties concerning Defendants' operation of a bed and breakfast on their real property.Defendants' deed contained restrictive covenants limiting the use of the property to "single-family residential or agricultural purposes only[.]"In their complaint, Plaintiffs sought to enjoin Defendants from operating a bed and breakfast and sought damages not in excess of $10,000.00.Defendants' counterclaim alleged that Plaintiffs' property is subject to restrictions and that Plaintiffs had violated those restrictions by "allow[ing] and maintain[ing] unsightly and unkept (sic) conditions" on the property.

Plaintiffs' amended complaint contains three claims for relief: (1)Plaintiffs' request for declaratory judgment; (2)Plaintiffs' request for an injunction; and (3)Plaintiffs' claim arising from breach of contract or restrictive covenants.Defendants also filed a counterclaim in addition to their answer, seeking injunctive relief and asserting that Plaintiffs themselves had violated deed restrictions.The trial court's order granting partial summary judgment concerns only Plaintiffs' claim for declaratory judgment.Thus, Plaintiffs' two remaining claims, as well as Defendants' counterclaim, have yet to be determined.

The trial court's order...